Citation Nr: 0937309
Decision Date: 09/30/09 Archive Date: 10/09/09
DOCKET NO. 03-14 733 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for a skin disability,
including Bowen's disease, manifested by peeling of the skin
of the hands and feet and malignant melanomas.
2. Entitlement to service connection for left ear hearing
loss.
3. Entitlement to service connection for left elbow
bursitis.
4. Entitlement to service connection for bronchitis.
5. Entitlement to an increased rating for a left knee
anterior cruciate ligament injury, status post repair,
assigned a 10 percent rating prior to March 31, 2008, and a
20 percent rating effective that date.
6. Evaluation of service-connected left knee arthritis,
evaluated as 10 percent disabling from September 25, 2002,
and 20 percent disabling effective March 31, 2008.
7. Entitlement to an increased rating for low back
arthritis, currently evaluated as 10 percent disabling.
8. Entitlement to a compensable rating for right ear hearing
loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and Spouse
ATTORNEY FOR THE BOARD
K. Hudson, Counsel
INTRODUCTION
The veteran served on active duty from December 1974 to July
1981.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a December 2002 RO decision. In September
2004, the veteran and his wife testified at a videoconference
hearing before the undersigned. In a decision/remand dated
in June 2005, numerous issues, including those set forth on
the title page of this decision, were remanded to the RO for
additional development.
Of the other issues remanded at that time, in a rating
decision dated in February 2006, the Appeals Management
Center (AMC) granted service connection for costochondritis
of the left chest, a left shoulder disability, and
hemorrhoids, thus terminating the appeal as to those issues.
In a statement dated in March 2006, the Veteran withdrew, in
writing, his appeals as to the issues of entitlement to
service connection for left elbow bursitis, hypertension,
bronchitis, peripheral neuropathy of the upper and lower
extremities, and sleep apnea. Therefore, these issues are no
longer in appellate status. See 38 C.F.R. § 20.204(b) (2008)
(a substantive appeal may be withdrawn at any time before the
Board promulgates a decision). As addressed below, the
Veteran's July 2009 statement that he did not wish to
withdraw the issues of service connection for bronchitis and
left elbow bursitis are construed as a request to reopen
those claims, which are REFERRED to the RO for appropriate
action.
In a July 2008 rating decision, the AMC granted service
connection for depression and a neck disability, thus
satisfying the appeal as to those issues. Additional issues,
raised by the Veteran in August 2007, and not in appellate
status, were also addressed in that rating decision.
The July 2008 rating decision also granted higher ratings of
20 percent each for left knee anterior cruciate ligament
injury, status post repair, and for left knee arthritis, each
previously evaluated as 10 percent disabling, effective March
31, 2008. The two-tiered rating remains on appeal, as a
grant of less than the maximum available rating does not
terminate the appeal, unless the veteran expressly states he
is satisfied with the assigned rating. See AB v. Brown, 6
Vet. App. 35, 38 (1993).
In a June 2009 rating decision, the AMC granted service
connection for a right knee disability. The AMC also
deferred consideration of a TDIU claim the Veteran had filed,
as that was an original claim, and not on appeal, and, thus,
should be considered in the first instance by the RO. This
issue is REFERRED to the RO for appropriate action.
The Veteran also submitted additional evidence, which was
received at the Board in August 2009, without waiver of RO
consideration. However, as the evidence consisted of copies
of evidence previously considered, initial review by the RO
is not necessary. See Disabled American Veterans (DAV) v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir.
2003); 38 C.F.R. § 20.1304 (2006).
The issues involving service connection for left ear hearing
loss and increased ratings for right ear hearing loss and a
low back disability are addressed in the REMAND portion of
the decision below and are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Skin disabilities began many years after service, and are
not due to any incident of service, including claimed Agent
Orange or other chemical exposure.
2. Effective September 25, 2002, left knee anterior cruciate
ligament injury, status post repair, has been manifested by
moderate instability.
3. Effective September 25, 2002, left knee arthritis has
been manifested by mild to moderate degenerative changes, and
limitation of extension, which, when considered with
objective signs of pain, may be considered to most closely
approximate 15 degrees.
4. On March 30, 2006, in two separate written statements,
the Veteran withdrew the issues of service connection for
left elbow bursitis and bronchitis from appellate
consideration.
CONCLUSIONS OF LAW
1. A skin disability was not incurred in or aggravated by
service, and may not be presumed to have been incurred
therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116, 1131, 1137,
5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008).
2. Effective September 25, 2002, the criteria for a 20
percent rating, but no higher, for left knee anterior
cruciate ligament injury, status post repair, have been met.
38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321,
4.1, 4.2, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257
(2008).
3. The criteria for an evaluation in excess of 20 percent
for left knee anterior cruciate ligament injury, status post
repair, have not been met. 38 U.S.C.A. § 1155, 5107 (West
2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.40, 4.45, 4.59, 4.71a,
Diagnostic Code 5257 (2008).
4. Effective September 25, 2002, the criteria for a 20
percent rating, but no higher, for left knee arthritis have
been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R.
§§ 3.321, 4.1, 4.2, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code
5003-5261 (2008).
5. The criteria for an evaluation in excess of 20 percent
for left knee arthritis have not been met. 38 U.S.C.A.
§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.40,
4.45, 4.59, 4.71a, Diagnostic Code 5003-5261 (2008).
6. The criteria for withdrawal of the appeal of the issues
of service connection for left elbow bursitis and bronchitis
by the appellant have been met. 38 U.S.C.A. § 7105(b)(2),
(d)(5) (West 2002); 38 C.F.R. § 20.204 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Assist and Notify
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp.
2009)), imposes obligations on VA in terms of its duties to
notify and assist claimants. In a letter dated in October
2002, prior to the initial adjudication of the knee claims,
the RO advised the claimant of the information necessary to
substantiate his claim. He was informed of his and VA's
respective obligations for obtaining specified different
types of evidence. He was specifically told that it was his
responsibility to support the claim with appropriate
evidence. See Quartuccio v. Principi, 16 Vet. App. 183
(2002). In February 2006, he was again provided this
information regarding the higher rating claims, as well as
the same notice with respect to the service connection
claims. In February 2007, he was furnished notice regarding
the effective date of a grant of benefits See Dingess v.
Nicholson, 19 Vet. App. 473 (2006). The notice was followed
by readjudication of the claims and the issuance of a
supplemental statement of the case in June 2009. See
Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the
issuance of a fully compliant VCAA notification followed by
readjudication of the claim, such as an SOC or SSOC, is
sufficient to cure a timing defect). Thus, the duty to
notify has been satisfied.
The Board also concludes VA's duty to assist has been
satisfied. Service medical records have been obtained, as
have identified post-service private and VA treatment
records. SSA records were obtained. A VA nexus opinion is
not warranted because, as discussed below, there is no
credible evidence establishing that an event, injury, or
disease occurred in service or during an applicable
presumptive period for which the claimant qualifies, or a
credible indication that the disability or persistent or
recurrent symptoms of a disability may be associated with the
veteran's service. See McLendon v. Nicholson, 20 Vet. App.
79 (2006). VA examinations addressing the increased rating
issues were obtained in November 2002, January 2004, and
March 2008. The examinations were based upon consideration
of the Veteran's prior medical history, including medical
records and earlier examinations and also describe the
disabilities in sufficient detail for the Board to make an
informed decision. Barr v. Nicholson, 21 Vet. App. 303, 312
(2007). The Veteran testified at a Board hearing before the
undersigned in September 2004.
Thus, the Board is satisfied that VA has met its duties to
inform and assist the claimant, and there is no indication of
the existence of any potentially relevant evidence which has
not been obtained. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
claimant are to be avoided). VA has satisfied its duties to
inform and assist the claimant at every stage of this case,
and she is not prejudiced by the Board's decision on the
merits.
II. Service Connection - Skin Disability
The Veteran contends that he has skin conditions which were
caused by exposure to toxic chemicals in service.
Specifically, he states that in England in 1976, he was
temporarily assigned to a job where he had to spray
herbicides with Agent Orange around fence lines to keep the
growth down from the farm next to the military air field. He
also contends that his main job as a jet engine mechanic
required the use of arsenic. He states that his doctor told
him that his skin conditions were due to his exposure to
these substances.
Service connection may be established for chronic disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service
connection may be granted on a presumptive basis for certain
chronic diseases, such as cardiovascular renal disease,
including hypertension, if the disability was manifested to a
compensable degree within one year of separation from
service. 38 U.S.C.A. §§ 1110, 1112(a)(1), 1113; 38 C.F.R. §§
3.307(a)(3), 3.309(a). If there is no showing of a chronic
condition during service, then a showing of continuity of
symptomatology after service is required to support a finding
of chronicity. 38 C.F.R. § 3.303(b). To establish service
connection, a veteran must show (1) the existence of a
present disability; (2) in-service incurrence or aggravation
of a disease or injury; and (3) a causal relationship between
the current disability and the in-service disease or injury
(or in-service aggravation), "the so-called 'nexus'
requirement." Holton v. Shinseki, No. 2008-7081, slip op. at
3 (Fed. Cir. Mar. 5, 2009); Shedden v. Principi, 381 F.3d
1163, 1167 (Fed. Cir. 2004).
Service treatment records show that in January 1978, the
Veteran complained of pain around a mole in the mid-lower
back. He said the mole had been present all of his life, and
that the color used to be brown, and now appeared lighter.
On examination, he had a 4mm by 5mm nevus in the mid-lumbar
area, midline, which was non-tender and freely mobile. It
was tan in color. The Veteran was reassured, and no
treatment or follow-up was provided. In October 1978, a
military primary care clinic chief provided a list of the
Veteran's visits from December 1977 to October 1978. These
included a visit in July 1977 for a rash on the buttocks. On
a medical history in November 1980, the veteran responded
"yes" to a question of whether he had now, or had ever had,
skin diseases. The April 1981 summary of the Physical
Evaluation Board (PEB) examination noted that the Veteran
complained of peeling of the skin of his hands. No skin
condition was noted on the examination report. He also
described this condition at his PEB hearing in June 1981. He
stated he had sought treatment and been provided with lotions
which did not seem to help.
After service, in April 1982, W. Barr, M.D., wrote that he
was treating the Veteran for a number of conditions including
dyshydrosis of the hands. Dr. Barr's records, dated from
1960 to 1998, do not show dyshydrosis of he hands. As to
other skin complaints, in October 1982, the Veteran had a
fine rash on his abdomen and back. In November 1988, he had
multiple skin tags removed from the axillary and neck areas.
H. Thompson, Jr., M.D., wrote, in December 1997, that he had
seen the Veteran over the last three months in regard to some
skin tags of the neck and axillae which were excised and
confirmed to be the same. He also had an erythematous macule
of the left inguinal fold area, which was biopsied and shown
to be a patch of Bowen's disease. It was treated with
curettage and electrodesiccation in mid-October. In December
2002, Dr. Thompson wrote tat the Veteran was treated for
Bowen's disease (squamous cell carcinoma in-situ) of the left
inguinal fold area in October 1997. He said that Bowen's
disease had been known to follow exposure to arsenic. He
noted that the Veteran felt that his exposure to multiple
chemicals while working as a jet engine mechanic could have
included this chemical.
VA treatment records show that on an examination in October
2001, the Veteran reported that he had had a "skin cancer"
removed from his left groin, which he described as a darkly
pigmented, irregular flat mass the size of a dime. He stated
he had no history of skin diseases. On examination, there
were no rashes or bruises. There were multiple nevi, with no
suspicious lesions. Later in October 2001, he was evaluated
in a VA dermatology clinic. He had a history of some type of
tumor removed two years earlier by Dr. Thompson from the left
inguinal fold. He had had a couple of actinic keratoses
removed in the past. Currently, he had a keratosis on the
left crown of the scalp, two or three on the arms, and one on
the right upper back. These were treated with cryotherapy.
There was no evidence of any recurrent tumor at the left
inguinal fold site.
A VA dermatology clinic note dated in November 2002 shows
that the Veteran had a total body skin examination. He had a
history of seborrheic keratoses, skin tags, actinic
keratoses, and prior history of squamous cell carcinoma in
situ, which had been removed from the left inguinal area by
Dr. Thompson. On examination, he had numerous areas of solar
lentigos scattered over his back, arms, and chest. He also
had seborrheic stucco-type keratoses over the legs and arums.
He had one seborrheic keratosis on his mid-back. He also had
several skin tags, including three or four in the inguinal
area. Each of the sites was treated with cryotherapy. There
was no evidence of recurrence of squamous cell carcinoma.
He continued to be followed regularly for other occurrences
of such conditions over the succeeding years. In November
2003, again, the history of squamous cell carcinoma in situ,
removed from the left inguinal area by Dr. Thompson, was
reported. At his dermatology follow-up appointment in
November 2004, however, the Veteran gave a history of
melanoma in the past. Currently, he had a 3 by 3 mm
variegated pigmented nevus versus lentigo versus melanoma on
the left buttock. He also had intertrigo and scale in the
groin. Overall, the skin showed follicular papules
consistent with keratosis pilaris. The buttock lesion was
removed by means of a punch incision, and pathology tests
disclosed a benign junctional nevus. In November 2005, he
again gave a history of a melanoma removed. On examination,
there was no indication of melanoma. A keratosis on upper
lip, thought to possibly be carcinoma, was found by pathology
testing to be seborrheic keratosis. He also had some
intertrigo related to obesity.
In February 2006, he said that he had had a melanoma removed
from the left medial upper leg in the groin. A small pustule
over the right leg was drained. He had generalized areas of
folliculitis, over the abdomen and buttocks, and over the
lower back, he had four 1 mm nevi with slightly erythematous
halos. These were removed in March 2006, with the pathology
report showing that two were compound nevi, one was lentigo
simplex, and one was an atypical (dysplastic) nevus, with the
surgical margins uninvolved. In March 2007, when seen for
dermatology follow-up, the Veteran reported concerns about a
previous melanoma being removed from the back. He also had
had atypical nevi removed in the past. His back showed the
excision sites with normal appearing scars. He had about
four atypical nevi on the aback and one on the right abdomen.
When seen for excision of these nevi in June 2007, he gave a
history of a melanoma that was removed from the left inguinal
area approximately eight years earlier, which he stated was
about the size of a quarter. The Veteran did not have any
records of this, nor did he know where to get them. The
atypical nevi were removed, and biopsies showed two
junctional nevi, one compound nevus, and one atypical
compound nevus, (dysplastic), mild, with negative margins.
No further therapy was necessary for any of those sites.
Medical evidence is generally required to establish a medical
diagnosis or to address questions of medical causation; lay
assertions of medical status do not constitute competent
medical evidence for these purposes. Espiritu v. Derwinski,
2 Vet. App. 492, 494 (1992). However, lay assertions may
serve to support a claim for service connection by supporting
the occurrence of lay-observable events or the presence of
disability or symptoms of disability subject to lay
observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a);
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see
Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006)
(addressing lay evidence as potentially competent to support
presence of disability
The Board must assess the credibility and weight of all the
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Madden v.
Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied,
523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362,
367 (2001). Equal weight is not accorded to each piece of
evidence contained in the record; every item of evidence does
not have the same probative value. Competency must be
distinguished from weight and credibility, which are factual
determinations going to the probative value of the evidence.
Rucker v. Brown, 10 Vet. App. 67, 74 (1997).
The evidence does not show that the Veteran has a chronic
skin disability which was of service onset, or which is due
to any events in service. Although he reported peeling of
the hands in service, there has been no objective evidence of
a skin condition manifested by such. Dyshydrosis mentioned
in a 1982 from Dr. Barr has not been shown since that time,
was not shown in Dr. Barr's actual treatment records. There
is no other medical evidence of a skin condition manifested
by peeling hands, including in the extensive records of VA
treatment.
The Veteran had skin tags removed in 1988, and records show
that beginning in October 2001, the Veteran has been followed
regularly at the VA for skin tags, and treatment of
seborrheic and actinic keratoses. However, there is no
evidence relating these skin conditions to service.
He has also had several nevi removed, two of which were noted
to be dysplastic. However, they were not shown to be
cancerous. He was seen in service on one occasion for pain
in the area of a mole on his back, but examination revealed
the nevus to be entirely normal, and the assessment on that
occasion was paravertebral muscle spasm of the back.
In 1997, many years after service, the Veteran was treated
for an inguinal lesion diagnosed as Bowen's disease, which
his doctor stated was a carcinoma in-situ. The Veteran
claims that this was due to exposure to arsenic as a jet
engine mechanic, and the doctor said that Bowen's disease had
been known to follow exposure to arsenic. However, as the
only incident of Bowen's disease was in 1997, and the Veteran
has no current residuals, it is not necessary to further
investigate this matter, in particular, to verify any in-
service arsenic exposure, or to obtain an opinion as to the
likelihood that any such exposure triggered the disease. In
this regard, the Veteran filed his claim in November 2002,
and has had no residuals of Bowen's disease shown at any time
since the claim was received.
Additionally, there is no medical evidence that the Veteran
has, or ever had, malignant melanoma. In this regard, he did
not specifically report a history of melanoma to his VA
dermatologist until after he had been treated in the
dermatology clinic for some time. Previously, he stated that
he had been treated for "skin cancer" by Dr. Thompson. In
November 2003, the history of squamous cell carcinoma in
situ, removed from the left inguinal area by Dr. Thompson,
was reported. Then, at his dermatology follow-up appointment
in November 2004, the Veteran gave a history of melanoma in
the past. He later stated that this "melanoma" had been in
the inguinal area, which is the same location as the Bowen's
disease treated by Dr. Thompson in 1997. Similarly, in March
2006, a dysplastic but not cancerous nevus was removed from
the back, and then in March 2007, the Veteran reported a
history of melanoma on the back. None of the nevi removed
from his back have proved to be melanoma, or even cancerous.
The condition in the inguinal area was a carcinoma in-situ,
not a melanoma. The Veteran is not competent to provide a
diagnosis of his skin conditions, as such it requires
pathological testing. His claims that he has had melanoma in
the past have not been borne out by the medical evidence.
In June 2007, dermatology clinic records show that the
Veteran gave a history of a melanoma that was removed from
the left inguinal area approximately eight years earlier. As
noted above, he had a carcinoma in situ removed from the left
inguinal area in 1997, and he did not refer to a history of
melanoma until several years later. Since by 2007, he was
unable to recollect where this had occurred, these later
statements are considerably outweighed by the earlier
evidence, which shows no melanoma was found in the sites
mentioned by the Veteran, although other skin abnormalities
were shown, including Bowen's disease, a form of cancer.
Further, the Board does not find it credible that if he had
had a melanoma in about 1999 (seven years before 2007), he
would have failed to mention this history when first
evaluated at the VA dermatology clinic in 2001, and instead
report the history of Dr. Thompson's treatment for a far less
serious condition in 1997. Thus, the medical evidence of the
actual diagnosis is far more probative than the Veteran's
later recollections, and a diagnosis of melanoma is beyond
his competence.
The Veteran also contends that he was exposed Agent Orange
while spraying herbicides in England. He feels that VA has
not met its burden of proof of establishing that he was not
exposed to Agent Orange. However, he did not serve in
Vietnam, and there is no presumption of Agent Orange exposure
for any service in England. The service department was
unable to verify herbicide exposure, and the Veteran has not
provided any evidence supporting his claim that the military
used dioxin-containing herbicides in England in the late
1970's. He does not state how he came by the belief that he
had been exposed to Agent Orange.
Moreover, none of his claimed or shown skin conditions have
been shown to be presumptively associated with Agent Orange.
In this regard, the diseases presumed to be associated with
Agent Orange exposure are chloracne or other acneform
diseases consistent with chloracne, type 2 diabetes,
Hodgkin's disease, chronic lymphocytic leukemia, multiple
myeloma, non-Hodgkin's lymphoma, acute and sub-acute
peripheral neuropathy, porphyria cutanea tarda, prostate
cancer, respiratory cancers (cancer of the lung, bronchus,
larynx, and trachea), soft-tissue sarcomas, and AL
amyloidosis. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e).
Further, the Veteran has submitted no competent evidence of
actual causation. See Stefl v. Nicholson, 21 Vet. App. 120
(2007) (holding that the availability of presumptive service
connection for some conditions based on exposure to Agent
Orange does not preclude direct service connection for other
conditions based on exposure to Agent Orange). The Veteran
has not provided any medical evidence in support of his
assertion, which is not one subject to lay observation.
Therefore, in the absence of competent evidence of Agent
Orange exposure in service, or current disease presumptively
or actually related to such exposure, the weight of the
evidence is against qualifying herbicides as a causal agent
in the development of the Veteran's skin conditions.
For the foregoing reasons, the preponderance of the evidence
is against the claim, the benefit-of-the-doubt does not
apply, and the claim must be denied. 38 U.S.C. § 5107(b);
see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
III. Higher Ratings -- Left Knee Conditions
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4.
Although the disability must be considered in the context of
the whole recorded history, including service medical
records, the present level of disability is of primary
concern in determining the current rating to be assigned.
See 38 C.F.R. § 4.2 (2007); Francisco v. Brown, 7 Vet. App.
55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
If the disability has undergone varying and distinct levels
of severity throughout the entire time period the increased
rating claim has been pending, staged ratings may be
assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007);
Fenderson v. West, 12 Vet. App. 119 (1999). In this case,
the RO assigned staged ratings for both the instability and
the arthritis. Specifically, 10 percent ratings for each of
these conditions were in effect prior to March 18, 2008, with
20 percent ratings for each effective that date.
VA treatment record show an X-rays of the left knee in
October 2001 which showed that the Veteran had undergone an
anterior cruciate ligament repair, with intact hardware.
There was mild degenerative changes of all three joint
compartments. There was no malalignment.
On a VA examination in November 2002, the Veteran reported
significant difficulty walking with his left lower extremity,
with limping, swelling, and giving way. On examination, he
had two scars on the knee. He had an antalgic gait. Range
of motion was from 20 to 90 degrees. He had 2+ medial and
lateral collateral ligament laxity. He had significant
guarding on anterior cruciate testing. He had joint line
tenderness, large plantar fasciitis patellofemoral
crepitation, and mild effusion. The examiner noted that the
left knee had multiple ligamentous injury with significant
evidence of intra-articular pathology which was likely to be
significant traumatic arthrosis, now with severely limited
range of motion and function. X-rays had been ordered.
VA orthopedic clinic records show that in January 2003, the
Veteran complained of bilateral knee pain, worse on the
right.
On a VA examination in January 2004, the Veteran was noted to
be wearing braces on both of his knees. He said he had pain,
swelling, and stiffness in the knees with use. On
examination, range of motion of the left knee was from 0 to
105 degrees. He had tenderness to palpation at the joint
lines, as well as mild to moderate patellofemoral crepitation
and pain. He had minimal effusion, increased laxity to the
anterior drawer and Lachman test, but was stable to posterior
drawer and varus valgus. Quadriceps and hamstring strength
was 4/5. The impression was left knee degenerative joint
disease. In a February 2004 addendum, the examiner stated
that he was unable to determine any additional limitation in
range of motion or joint function due to pain, fatigue,
weakness or lack of endurance following repetitive use. He
felt that it seemed likely that there would be increased pain
and weakness with repetitive use, but was unable to quantify
the lost range of motion. X-rays of the left knee in
January2004 showed hardware suggestive of anterior cruciate
ligament repair. There was no joint effusion, and there had
been no significant change since July 2003. There were mild
osteophytes of all three compartments of the knee.
In January 2004, a VA orthopedic clinic note reported that
the Veteran wore an anterior cruciate ligament brace. He had
not had any significant interval changes in his knee
complaints. On examination, range of motion was from 0 to
115 degrees. There was no laxity to varus valgus stress.
There was trace effusion. There was crepitation. In
February 2004, the orthopedic clinic noted that the Veteran
had mild degenerative joint disease of both knees. He had a
steroid injection to the left knee to help quiet
inflammation.
In August 2004, the Veteran was seen a few days after he had
tripped and fallen, with resulting left knee and left hip
pain. He reported that he had tripped on a tree root while
walking, and fallen onto the left side and left knee. He had
left knee pain and swelling since. He said he had always had
some instability of the left knee but felt like it was worse.
He was wearing a left knee brace. On examination, he was
tender to palpation. He had full flexion but limited flexion
to 90 degrees due to discomfort. The assessment was
exacerbation of left knee pain.
An orthopedic clinic note in June 2005 disclosed that the
Veteran complained of ongoing knee pain. The doctor
commented that he weighed 351 pounds. Left knee X-rays
disclosed mild medial compartment narrowing and mild spurring
of all three compartments, with no effusion, and no change
since January 2004. He extended completely, and flexed well
beyond 90 degrees. There was crepitation. He had definite
degenerative changes, which were not severe enough to
consider any type of surgery. Treatment recommendations
included life style changes, in particular weight reduction.
On orthopedic clinic follow-up in December 2005, the Veteran
described some worsening of symptoms of knee pain. He said
that he could ambulate about 30 yards before the pain became
really cumbersome. On examination, there was crepitus.
There were well-healed scars from the previous surgery. X-
rays in December 2005 disclosed moderate degenerative joint
disease in the left knee.
In February 2006, he stated that his left knee gave way
causing him to land on the bathroom floor. In June 2006, it
was noted that the Veteran was morbidly obese with multiple
arthralgias. As a result of a recent fall, he was now using
a rolling walker, and had chronic bilateral knee pain. It
was noted he had good relief with injection in the past. He
had an antalgic gait. Knee examination was unchanged. He
had small effusions, with normal patellofemoral tracking.
The assessment was bilateral knee pain.
X-rays of the left knee in January 2007 showed hardware
compatible with anterior cruciate ligament repair. There was
mild spurring of all three compartments of the left knee.
There was a small sclerotic lesion unchanged since November
2002. There was no joint effusion.
On a VA examination in March 2008, the Veteran used a walker
with a seat. He complained of knee pain accompanied by
locking, instability, and swelling. He indicated that his
ability to stand for any length of time was markedly limited,
and that he basically was unable to walk in a functional
fashion. He said he had daily flare-ups which further
limited his walking. He used knee braces on a routine basis
along with the walker. He had bony swelling of the knee.
There was pain on patellar compression of the left knee. He
lacked 15 degrees of full extension and could flex to 100
degrees. The range of motion was not additionally limited
following repetitive use . The knee was stable to Lachman and
drawer tests, but demonstrated pain and laxity to varus and
valgus stress, which was felt to be mild to moderate in
degree. The knee was tender diffusely, and demonstrated
crepitus. The diagnosis was anterior cruciate ligament tear
of the left knee, treated surgically.
Degenerative or traumatic arthritis established by X-ray
findings will be rated on the basis of limitation of motion
under the appropriate diagnostic codes for the specific joint
or joints involved. When the limitation of motion of the
specific joint or joints involved is noncompensable under the
appropriate diagnostic codes, a rating of 10 percent is for
application for each such major joint or group of minor
joints affected by limitation of motion, to be combined, not
added under diagnostic code 5003. Limitation of motion must
be objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. In the
absence of limitation of motion, X-ray evidence of
involvement of 2 or more major joints or 2 or more minor
joint groups, warrants a 10 percent evaluation; with the
addition of occasional incapacitating exacerbations, a 20
percent evaluation is warranted. 38 C.F.R. § 4.71a, DC 5003
(degenerative arthritis) and DC 5010 (traumatic arthritis).
Normal range of motion of the knee is from 0 degrees of
extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate
II. Limitation of a leg (knee) flexion is rated 0 percent
when limited to 60 degrees, 10 percent when limited to 45
degrees, 20 percent when limited to 30 degrees, and 30
percent when limited to 15 degrees. 38 C.F.R. § 4.71a, DC
5260. Limitation of extension of a leg (knee) is rated 0
percent when limited to 5 degrees, 10 percent when limited to
10 degrees, 20 percent when limited to 15 degrees, 30 percent
when limited to 20 degrees, 40 percent when limited to 30
degrees, and 50 percent when limited to 45 degrees. 38
C.F.R. § 4.71a, DC 5261. Separate ratings may be awarded for
limitation of flexion and limitation of extension of the same
knee joint. VAOPGCPREC 09-04, 69 Fed. Reg. 59990 (2004).
Factors affecting functional impairment, such as pain on
motion, weakened movement, excess fatigability, lost
endurance, swelling, or incoordination, must also be
considered, in evaluating a disability based on limitation of
motion. See 38 C.F.R. §§ 4.40, 4.45 (2006), DeLuca v. Brown,
8 Vet. App. 202 (1995). Functional impairment must be
supported by adequate pathology. Johnson v. Brown, 9 Vet.
App. 7, 10 (1996).
A knee impairment with recurrent subluxation or lateral
instability is rated 10 percent when slight, 20 percent when
moderate, and 30 percent when severe. 38 C.F.R. § 4.71a,
Code 5257. Limitation of motion and instability of the knee
may be rated separately under Diagnostic Codes 5260 and 5257.
See VAOPGCPREC 9-98, 63 Fed.Reg. 56704 (1998); VAOPGCPREC 23-
97, 62 Fed.Reg. 63604 (1997). When evaluating the symptoms
under Diagnostic Code 5257, the provisions of 38 C.F.R.
§§ 4.40 and 4.45 regarding the effects of functional loss due
to pain do not apply, as that diagnostic code is not based on
limitation of motion. See Johnson v. Brown, 9 Vet. App. 7, 9
(1996).
A 10 percent evaluation is assigned for removal of the
semilunar cartilage, symptomatic. 38 C.F.R. § 4.71a, Code
5259. A dislocated semilunar cartilage, with frequent
episodes of locking, pain, and effusion, warrants a 20
percent rating. 38 C.F.R. § 4.71a, Code 5258. A "semilunar
cartilage" is one of the menisci of the knee joint.
Stedman's Medical Dictionary, 296 (27th ed., 2000).
As can be seen in the above summary of the relevant evidence,
the impairment from symptoms pertaining to the left knee have
not been easy to isolate from the Veteran's other multiple
health conditions, including his morbid obesity. Although he
does not feel that the obesity should be taken into
consideration, the use of manifestations not resulting from
service-connected disease or injury in establishing the
evaluation must be avoided. 38 C.F.R. § 4.14. The actual
pathology relating to the left knee consists of various
degenerative changes which have been characterized, based on
X-rays, as mild to moderate. In addition, instability has
been shown, again characterized as mild to moderate. As to
instability, although the condition has most often been noted
to be mild, moderate instability has been shown on occasion,
and the Board is of the opinion that the instability has more
closely approximated the moderate instability contemplated
for a 20 percent rating since the date of claim, September
25, 2002, as shown by the November 2002 VA examination.
Therefore, to that extent, the appeal as to that issue is
allowed.
A rating in excess of 20 percent for instability is not
warranted, however. In this regard, although in February
2006, the Veteran stated that he had fallen because his knee
had given way, numerous tests of stability have shown only
mild to moderate instability. Subluxation has not been
shown. Thus, the preponderance of the evidence is against a
rating in excess of 20 percent for left knee anterior
cruciate ligament injury, status post repair.
Concerning the left knee arthritis, the most recent
examination showed limitation of extension to 15 degrees,
reflective of a 20 percent rating. Although on the November
2002 examination, extension was to 20 degrees, on numerous
intervening evaluations he was able to extend to 0 degrees;
only on these 2 occasions has any limitation of flexion been
demonstrated. Moreover, X-rays have shown only mild to
moderate degenerative changes. He did not report any
improvement after the November 2002 examination. In view of
the overall findings, the preponderance of the evidence as a
whole is more consistent with a rating of 20 percent for left
knee arthritis effective from September 25, 2002, the
effective date of the grant of service connection.
A rating in excess of 20 percent is not warranted. Because
extension limited to 20 degrees was only shown on one
occasion, whereas normal extension was subsequently
demonstrated on numerous occasions, with no improvement in
the underlying degenerative changes shown, the Board finds
that finding was not supported by objective pathology, and
was not an accurate representation of his level of limitation
of motion for any identifiable time period. In addition,
while the examiner in January 2004 speculated that it seemed
likely that there would be increased pain and weakness with
repetitive use, he was unable to quantify any additional lost
range of motion, while in March 2008, the examiner
specifically stated that range of motion was not additionally
limited following repetitive use. The specific findings are
more probative. Flexion has ranged from 90 degrees to 115
degrees; although less than normal, this range of motion is
not compensable, and a separate rating is not warranted.
Accordingly, a 20 percent rating for arthritis of the left
knee is warranted effective September 25, 2002, but the
preponderance of the evidence is against a claim in excess of
20 percent for any identifiable time period. In reaching
this determination, the benefit-of-the-doubt rule has been
considered. 38 U.S.C. § 5107(b); see Ortiz, supra; Gilbert,
supra.
Moreover, the rating schedule provides for higher ratings for
knee conditions, and the evidence does not suggest that the
rating criteria are inadequate to describe his knee
conditions; consequently, the question of an extraschedular
evaluation is not raised. See Barringer v. Peak, 22 Vet.
App. 242 (2008); Thun v. Peake, 22 Vet. App. 111 (2008).
IV. Withdrawn Issues
In two statements dated March 30, 2006, the Veteran stated
that he wished to withdraw issues including bronchitis and
left elbow bursitis from a pending appeal at that time, and
that he reserved the right to reopen the claims at a later
date. Accordingly, the issues were withdrawn from appellate
consideration.
In a statement dated in July 2009, the Veteran said he did
not wish to withdraw these appeals; that the withdrawal had
been a "typographical error." He said he wished to
reinstate the appeals. However, he expressed his intent to
withdraw the issues in two separate written statements dated
March 30, 2006. He did not present any contentions as to
those issues in the attached arguments regarding his
remaining issues, nor did he refer to these issues again in
the other statements he submitted, until May 2009. Under
these circumstances, the Board finds that the withdrawal of
the issues was not a "typographical error," but reflected
his intention to withdraw the claims at that time. Now, he
wishes to reopen these claims, as he indicated, at the time
he withdrew the claims, that he might wish to do in the
future.
An appeal may be withdrawn as to any or all issues involved
in the appeal at any time before the Board promulgates a
decision. 38 C.F.R. § 20.204 (2008). Withdrawal may be made
by the appellant or by his or her authorized representative.
38 C.F.R. § 20.204. In the present case, the Veteran
withdrew his appeal as to several issues, including service
connection for left elbow bursitis and bronchitis, three
years before he next mentioned the issues. Hence, the Board
does not have jurisdiction to review the appeal as to those
issues, and they are dismissed. As discussed above, the
request to reopen the claims is referred to the RO for
appropriate consideration.
ORDER
Service connection for a skin disability is denied.
An evaluation of 20 percent for left knee anterior cruciate
ligament injury, status post repair, is granted effective
September 25, 2002; to that extent, the appeal is allowed.
An evaluation in excess of 20 percent for left knee anterior
cruciate ligament injury, status post repair, is denied.
An evaluation of 20 percent for left knee arthritis is
granted effective September 25, 2002; to that extent, the
appeal is allowed.
An evaluation in excess of 20 percent for left knee arthritis
is denied.
The issues of entitlement to service connection for left
elbow bursitis and bronchitis are dismissed.
REMAND
Low Back Arthritis
This case was previously remanded in part to provide an
examination of the Veteran's low back disability, to include
range of motion studies. However, the examination was unable
to accomplish such testing. Remand instructions of the Board
are neither optional nor discretionary, and full compliance
is required. See Stegall v. West, 11 Vet. App. 268 (1998).
The examination report did not indicate whether the inability
to carry out range of motion testing was due to the service-
connected back condition, morbid obesity, lack of
cooperation, or other cause. The X-rays relied upon were
from November 2002, and there was no other objective evidence
showing that the range of motion studies were not able to be
accomplished due to the back condition. The Board cannot
make such a determination on its own, without medical
evidence. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992)
(a layman is not competent to offer a diagnosis or medical
opinion); Jones v. Principi, 16 Vet. App. 219, 225 (2002)
(Board must provide a medical basis other than its own
unsubstantiated conclusions to support its ultimate
decision); Colvin v. Derwinski, 1 Vet.App. 171 (1991) (Board
is prohibited from making conclusions based on its own
medical judgment).
The November 2002 examination was also inadequate, with the
examiner noting "poor effort." If the Veteran fails to
cooperate fully with the examination, this must be noted in
the examination report. Because the most recent examination
report did not explain why the necessary findings could not
be obtained, another examination must be scheduled; if
testing cannot be accomplish, the examination report must
explain the reasons. To this end, any tests, such as X-rays,
necessary to reach such a determination must be obtained, as
well as the recent treatment records.
Hearing Loss
In the June 2005 Board decision, the Board reopened the issue
of service connection for left ear hearing loss, and remanded
the claim for additional development, to include an
examination. This examination was not conducted. In
addition, the January 2004 VA examination included a February
2004 addendum, in which the examiner referred to a detailed
audiology evaluation conducted on January 30, 2004, which is
not of record. It was indicated that the Veteran's speech
discrimination test results were too inconsistent to be
reliable, and that pure tone tests only should be used. If
this is still the case, the examiner must be sure to certify
this on the examination report. 38 C.F.R. § 4.85(c) (2008).
In addition, the evidence does not show that the issue of
entitlement to service connection for left ear hearing loss
was subsequently readjudicated on the merits, as it was not
included in any later rating decision or supplemental
statement of the case. Accordingly, the RO must readjudicate
this claim, and provide a supplemental statement of the case
if appropriate.
Accordingly, the case is REMANDED for the following action:
1. Obtain the following VA medical
records:
* All VA medical records dated from March
2007 to the present time, including, but
not limited to, records of treatment
and/or radiographic studies pertaining to
the low back dated during this period.
* The report of an audiology evaluation
conducted on January 30, 2004, at the
Columbia, SC, VA outpatient clinic, to
include the audiologist's "note to DHCP"
dated January 30, 2004, and referred to in
an addendum dated in February 2004.
2. Then, schedule the veteran for an
appropriate VA examination to determine
the scope and current manifestations and
severity of his service-connected low back
arthritis. Because of the Veteran's
multiple medical conditions, it is
essential that the claims folders and a
copy of this REMAND be made available to
the examiner prior to the examination.
All symptoms should be reported in detail,
including range of motion studies (forward
flexion, backward extension, left and
right lateral flexion, and left and right
rotation), and commentary as to the
presence and extent of any functional loss
due to painful motion, weakened movement,
excess fatigability, repetitive motion,
and/or incoordination. If feasible, these
factors should be portrayed in terms of
additional loss in range of motion. If
the examiner is unable to evaluate any of
these factors, the reason(s) must be
provided; in particular, it must be
determined whether such inability is due
to the severity of the back condition
itself, or to unrelated factors, such as
obesity, lack or cooperation, or other
medical condition. To this end, any X-
rays or other tests necessary to ascertain
the severity of the arthritis should be
obtained. The examiner should describe
the extent to which a finding of
functional loss due to pain is supported
by adequate pathology and evidenced by the
visible behavior of the claimant.
3. Schedule the Veteran for a VA
audiological examination. The claims
folder is to be provided to the examiner
for review in conjunction with the
examination, to specifically include the
audiology clinic evaluation of January 30,
2004. All indicated tests and studies as
deemed appropriate by the examiner, to
include the Maryland CNC Test, must be
accomplished and all clinical findings
should be reported in detail. In
addition, the audiologist should, in view
of the January 30, 2004, evaluation,
ensure that puretone threshold results are
reliable, and formally certify as to
whether or not speech discrimination tests
are too inconsistent to be reliable. If
the Veteran has a left ear hearing loss,
under 38 C.F.R. § 3.385, the examiner
should express an opinion as to whether it
is at least as likely as not that hearing
loss in the left ear was of service onset,
accompanied by a rationale for this
opinion.
4. After assuring compliance with the
above development, as well as with any
other notice and development action
required by law, the RO should review the
service connection claims on appeal, to
include the issue of service connection
for hearing loss of the left ear. If any
claim is denied, the veteran and his
representative should be provided with a
supplemental statement of the case, and
given an opportunity to respond, before
the case is returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs